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Has the STL consigned corporate criminal liability to the junk mail folder?

On 8 March 2016, an uncomfortable majority of an appeals panel at the Special Tribunal for Lebanon (STL) confirmed the acquittal of Al Jadeed TV on two counts of contempt. But only just! This post briefly considers some of the awkward reasoning that led to Al Jadeed’s acquittal. A second trial against different persons (legal and natural) is ongoing. It involves the Al Akhbar newspaper and closing arguments are now scheduled for 13 May 2016. So it is a good moment to take stock of where the STL is on corporate criminal liability.

In addition to acquitting Al Jadeed, the appeals panel reversed the conviction of Karma al Khayat, Al Jadeed’s Deputy Head of News, on a second count: breach of an order to remove allegedly contemptuous content from Al Jadeed’s online platforms.

The trial judge had acquitted both accused on count one – a charge of undermining public confidence in the tribunal by revealing the identity of “purported confidential witnesses” (purported because there was no court order in place).

On count two, the trial judge convicted Karma al Khayat but acquitted Al Jadeed on the basis that Karma al Khayat’s conduct could not be attributed to the company as a matter of Lebanese law. Reversing the trial judge’s conviction of Karma al Khayat, the appeals panel held that it remained unproven that she ever received the relevant court order. Even though it was emailed to her, the appeals panel unanimously concluded that the reasonable possibility remained that the order had gone to her junk email folder such that she never possessed the necessary mens rea.

Some computers which do receive emails (Credit: STL under Creative Commons)

So a costly and controversial prosecution crashed and burned on email filter settings! But rather than dwell on the reasoning to acquit Karma al Khayat, the point for present purposes is that her acquittal had implications for the appeals panel’s subsequent analysis of Al Jadeed’s responsibility: instead of Karma al Khayat’s knowledge and conduct, attention shifted to her boss, Ms Al Bassam – Al Jadeed’s Head of News and Political Programs.

In contrast to the appeals panel’s unanimous decision to acquit Karma al Khayat, their acquittal of Al Jadeed on count two was a majority decision. And a strange, changing composition majority at that.

Stage one: the interim majority

An interim majority (Judges Hrdličková and Nosworthy) held that Al Jadeed’s liability should be decided on the exclusive basis of Lebanese law, specifically (in relevant part) Article 210 of the Lebanese Criminal Code:

Legal persons shall be criminally responsible for the activities of their directors, management staff, representatives and employees when such activities are undertaken on behalf of or using the means of such legal persons.

According to this interim majority, the assessment of Al Jadeed’s liability should disregard international law because it lacks “the clarity required in a criminal case”. They confirmed the trial judge’s decision to apply Lebanese law because “there is no relevant international convention with respect to the elements of corporate liability nor international custom or general principles of law” (para. 191).

This is an uncomfortable majority because, when holding that the STL has contempt jurisdiction over legal persons in October 2014, the same judges went to some lengths to rely on international standards and general principles of law and procedure. At that time, they held that:

although international law “has not evolved to the stage where the subjection of a corporate person to criminal liability has become imperative on States” (at para. 59);

“corporate liability [civil or criminal] for serious harm is a feature of most of the world’s legal systems and therefore qualifies as a general principle of law”; (para. 67) and

criminal liability in particular is “on the verge of attaining, at the very least, the status of a general principle of law applicable under international law.” (para. 67)

Their reference to Lebanese law in October 2014 was limited to a finding that the Article 210 of Lebanon’s Criminal Code made it foreseeable to Al Jadeed that it could be criminally liable.[1]

18 months later, Judges Hrdličková and Nosworthy appear to have concluded that, although international provisions were highly relevant to establishing the STL’s jurisdiction over legal persons, they are irrelevant to the exercise of that jurisdiction. Even if it is right to distinguish the existence of jurisdiction from its exercise in this way, the interim majority rather glossed over their change of emphasis.

Judge Akoum dissented from the interim majority. In October 2014 he had also dissented from Judges Hrdličková and Nosworthy on the existence of jurisdiction over legal persons, bemoaning the “murky seas of customary international law”. He noted Article 210 of the Lebanese Criminal Code but did not consider it relevant to the foreseeability of contempt proceedings before the STL. 18 months later, Judge Akoum rejected any recourse to substantive Lebanese law because the STL’s Rules of Procedure refer to Lebanon’s Code of Criminal Procedure rather than its Criminal Code – the provision on corporate liability is in the latter, not the former. Judge Akoum said that his analysis “begins and ends” with the determination that the provisions on liability of legal persons at the STL are insufficiently clear.

Nonetheless, the interim majority, in common with the trial judge, concluded that substantive Lebanese law should apply.

Stage two: a parachuted majority

In a twist, however, the interim majority disagreed over the application of Lebanese law to the facts.

Judge Hrdličková found that it had not been proven that Ms Al Bassam had the ability to remove the offending content from Al Jadeed’s online platforms. Even though she knew about the order, she did not have enough power to do anything about it. There was therefore no breach on the part of Ms Al Bassam to attribute to the company.

Judge Nosworthy disagreed. She held that it had been established that Ms Al Bassam was the “controlling officer” and expressed confusion over why Ms Al Bassam had not been charged instead of Karma al Khayat. Judge Nosworthy concluded that Al Jadeed should have been convicted on the basis of Ms Al Bassam’s conduct.

With the interim majority divided over the application of Lebanese law to the facts, Judge Akoum parachuted back in to create a fresh majority together with Judge Hrdličková – agreeing to Al Jadeed’s acquittal but on a completely different basis.

Whatever your view of this case and/or corporate liability in international law, this is an awkward landing for two years of ground-breaking litigation. (Ouch.)

A more beautiful landing (Credit: Andy Ciordia under Creative Commons)

Conclusions

So where is the STL left on corporate criminal liability?

After the STL first confirmed charges against legal persons in two cases in 2014, there was back-and-forth on the STL’s jurisdiction over legal persons. Looking back through the STL’s five decisions on its jurisdiction over legal persons, plus the merits judgments (trial and appeal) in the Al Jadeed case, one detects a noticeable retreat from international law to Lebanese law. This undermines the broader significance of the STL’s jurisprudence on corporate liability.

It looks as though, after lengthy flirtation, the STL has consigned the possibility of corporate criminal liability in international law to the junk mail folder.

[1] In a later (January 2015) decision in the contempt case involving Al Akhbar newspaper, the appeals panel (including Judges Hrdličková and Nosworthy, but not Judge Akoum) placed greater weight on Lebanese law, stressing the STL’s “unique link” to Lebanese law and recalled that it is “primarily mandated” to apply Lebanese criminal law and not exclusively international law (paras 57-59).